State v. Dalglish, 5172
| Decision Date | 07 January 1982 |
| Docket Number | No. 5172,5172 |
| Citation | 639 P.2d 323,131 Ariz. 133 |
| Parties | STATE of Arizona, Appellee, v. Alexander Macnab DALGLISH, Appellant. |
| Court | Arizona Supreme Court |
Ross P. Lee, Maricopa County Public Defender by James R. Hart, II, Deputy Public Defender, Phoenix, for appellant.
Alexander Macnab Dalglish, in pro. per.
This is an appeal from a jury verdict and judgment of guilt to the crime of first degree murder, A.R.S. § 13-1105, and a sentence of life imprisonment without possibility of parole for 25 years. A.R.S. § 13-703. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and -4035.
We must answer the following questions on appeal:
1. Was the defendant prejudiced by the granting and then the denying of the motion to suppress?
2. Did the trial court err in failing to suppress defendant's statements as being involuntary?
3. Was defendant's prior conviction admissible for impeachment purposes?
4. Did the trial court err in refusing to allow the defendant to introduce specific instances of conduct and character traits of the victim?
5. Did the trial court incorrectly and inadequately instruct the jury regarding the lesser included offense of murder in the second degree?
In addition, defendant, in his supplemental brief filed in propria persona, claims error because:
6. a key prosecution witness committed perjury, and
7. he was denied effective assistance of counsel because his attorney did not call a particular witness.
The facts necessary for a determination of this matter are as follows. The defendant was one of a group that pooled their money, totaling a little over $1,000.00, to make a purchase of drugs (Dilaudid). The money was given to the victim who was to go to his source and return with the drugs. When the victim did not return, the group assumed that they had been "ripped off" and that the victim was not going to provide the drugs or return the money. The next day, defendant went to the victim's house trailer in Phoenix, Arizona. Defendant had a .45 caliber semi-automatic pistol which he pointed at the victim. The defendant testified that he was afraid of the victim, that the victim had blackened one of his eyes a few days before, and that he believed the victim carried a gun. The defendant also testified that he did not intend to shoot the victim but only to scare him. The defendant stated that after some discussion, he shot into the ground as he chased the victim around his trailer, and that it was only after he perceived that the victim was reaching into his pocket for a gun that he shot at the victim. Witnesses at the trailer court testified as to the events, and there is no question defendant shot the victim. Shortly after the crime, the defendant was arrested and gave statements concerning the shooting in which he claimed self-defense.
The jury returned a verdict of guilty of first degree murder, and the court sentenced the defendant to life imprisonment. The defendant appeals.
Defendant contends that he was prejudiced by the manner in which the motion to suppress was handled by the trial court. Prior to trial, defendant made a motion to suppress statements made after his arrest. The court, after a hearing, granted the motion to suppress based upon lack of probable cause to arrest. The State then moved to reconsider, and the trial court deferred ruling on the motion. In the interim, the jury was sworn, opening statements were made, and witnesses were called and testified. The court eventually heard the State's motion to reconsider at which time Officer Oviedo testified that he had been mistaken in his previous testimony which had been the basis of the trial court's decision to grant the motion to suppress. Based upon Officer Oviedo's new testimony, the trial court denied the motion to suppress. The court, in changing its ruling, stated, however:
The defendant then moved for a mistrial, or in the alternative, a motion for continuance, stating "We come to the second day of trial and the opening statements, and after testimony began, and most importantly, after I have given an opening statement based upon the Court's previous ruling at that time, the Court under the circumstances changed its mind and reversed itself. * * * "
" * * * I have prepared for trial, and it is my recollection that the Court ruled back in September that the statement was not admissible in this matter. I have prepared for trial on the basis that that was the ruling that we would abide by during the trial of this matter.
When pressed by the court to specifically state wherein he was prejudiced, the defendant was unable to do so:
We do not view with favor the procedure followed by the trial court in this case. To change a ruling on a motion to suppress in the middle of the trial can be prejudicial to one or both parties. It is only because the defendant was unable both in the trial court and in this court on appeal to show prejudice that our hand is stayed. Had the defendant been able to show prejudice, we would be persuaded to consider favorably the relief requested. Based upon the facts in this case, we find no reversible error.
The defendant further contends, however, that the court erred in denying the motion to suppress. Although the basis for the trial court's ruling which originally granted the motion to suppress was lack of probable cause to arrest, the defendant does not raise this question on appeal, and we do not consider it in this opinion. We do consider, however, defendant's allegation that the statements were given in return for a promise by the police that they would release defendant's girl friend, Michelle Pifer, and not charge her with any crime. Defendant relies on the language of this court that such statement may not be obtained by a direct or implied promise, however slight. State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979). We agree with defendant's statement of the law, but we do not agree that the facts support defendant's position that his statements were made in return for a promise of favorable treatment for his girl friend. There were two officers who interrogated the defendant. As to Officer Hawkins, defendant admits that the officer did not make any promise in return for defendant's statement. As to Officer Oviedo, however, defendant testified:
And Oviedo replied, 'When you give us a statement and we see that she has no involvement, we will let her go.'
The officers, on the other hand, denied making any promises in return for defendant's statements. Officer Hawkins, for example, testified:
assured me she had not. I advised him then that I personally had no other knowledge of any evidence in order to hold her in the crime, and that if the police department did not have any evidence to involve her in the crime, that we could not hold her.
Even though the State must show " 'by a preponderance of the evidence' that the confession was freely and voluntarily made," State v. Arnett, 119 Ariz. 38, 42, 579 P.2d 542, 546 (1978); State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977); State v. Arredondo, 111 Ariz. 141, 526 P.2d 163 (1974), and the trial court must look to the totality of the circumstances to determine if the State has met its burden, Arnett and Knapp, supra, we will not overturn the trial court's determination absent clear and manifest error. State v. Arnett, supra; State v. Jordan, 114 Ariz. 452, 561 P.2d 1224 (1976), vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157 (1978). We believe there was sufficient evidence from which the trial court could find that the State, by a preponderance of the evidence, carried its burden of showing the statements voluntary.
Defendant contends, however, that the trial court never made a finding of voluntariness. We have stated on numerous occasions that the trial court must make a specific determination of voluntariness before the statements may be...
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